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Going Viral: No Jab, No Work? Mandatory COVID-19 Vaccinations in Workplaces

When Scott Morrison declared on Melbourne radio station 3AW last year that he wanted the COVID vaccine to be “as mandatory as you can possibly make it”, he controversially ruffled some anti-vaxx feathers. Then Qantas CEO Alan Joyce declared that if you planned on flying the Roo internationally, you’d need to have a COVID jab first. With 1001 opinions on what you can and can’t force people to do, mandatory vaccinations have never been a more confusing topic for employers.

What does the law say?

As at the date of this article, there are no public health orders in Australia that specifically enable employers to require their staff to be vaccinated against coronavirus.

However, state and territory governments have the ability to make public health orders requiring the vaccination of workers in their state or territory. If this occurs, employers and workers will have to comply with any orders made.

The Victorian Government, recently passed laws to compel healthcare workers to be vaccinated. Whilst this doesn’t extend to COVID-19 yet, we can expect it will be added to the list of vaccines required for those workers.

What about the model Work Health and Safety and Workers’ Compensation laws?

Under WHS laws, employers have a duty to do all that is “reasonably practicable” to minimise the risk of exposure to COVID-19 in the workplace and vaccination is one control measure that could be considered.

Mandatory vaccination however, is unlikely to be considered reasonably practicable according to Safe Work Australia because:

· No public health experts have recommended mandatory COVID vaccinations in any industries

· The vaccine may not yet be available for your staff

· A risk assessment may indicate that your workplace is low risk

· There are medical reasons why some staff can’t be vaccinated.

Under workers’ compensation laws, employees may be entitled to compensation if they contract COVID-19 whilst at work, regardless of how they contracted it. The vaccination is not a fool proof guarantee that staff will never catch COVID. This is why it is critical for employers to also implement other control measures in the workplace and to communicate these to staff, including reminders on physical distancing, wearing of masks, good hygiene and increased cleaning.

If there are no laws in place prohibiting a forced jab, why can’t I just require it?

In the absence of a law, enterprise agreement, policy or contract that requires vaccination, to determine whether mandatory vaccinations are permissible, the test is whether it is lawful and reasonable to direct an employee to be vaccinated, which is assessed on a case by case basis.

Some factors to take into account with respect to the concept of “lawful and reasonable” include:

· Whether the employee works with “at-risk” individuals such as children or the elderly;

· Whether the employee cannot be vaccinated due to medical reasons;

· Whether requiring the employee to be vaccinated would breach any discrimination laws, for example political or religious opposition to vaccinations. The exception to this is if the discriminatory action is taken because of the inherent requirements of the particular position concerned.

The case law

Two unfair dismissal claims were filed in 2020 in the Fair Work Commission by child care employees who were stood down after refusing to have flu vaccinations directed by the employer amid the COVID-19 pandemic (Nicole Maree Arnold v Goodstart Early Learning Limited t/a Goodstart Early Learning [2020] FWC 6083 and Yngrid Mesones Tello v Goodstart Early Learning Ltd [2020] FWC 5515).

Unfortunately, these applications were filed out of time, meaning that the reasonableness of the direction was not examined. The Deputy President however in the Arnold case stated:

“It is my view that it is at least arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.”

In another recent decision Glover v Ozcare [2021] FWC 231, it was found that indefinitely standing down an employee on unpaid leave who refused a flu vaccination, amounted to a termination of employment. The Commissioner in that case also stated:

“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.”

Ultimately, if employers are looking to introduce workplace COVID vaccinations, a consultative, open-minded and legally informed approach should always be considered before implementing any changes and deciding whether having the vaccine is an inherent requirement of an employee’s role.

In the meantime, we are more likely to see pigs fly internationally than our beloved kangaroo for a while yet and as for Scott Morrison, when you’re faced with a list of growing sexual assault allegations in your party, subjecting yourself to the sharp spike of a needle, all of a sudden doesn’t seem so controversial anymore.

The content of this article is intended to provide a general guide to the subject matter. It should not be relied on as legal advice and specialist advice should be sought about your specific circumstances.

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